Director of Public Prosecutions v Jenkins
[2019] VCC 939
•25 June 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-00312
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL JENKINS |
---
JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 June 2019 | |
DATE OF SENTENCE: | 25 June 2019 | |
CASE MAY BE CITED AS: | DPP v Jenkins | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 939 | |
REASONS FOR SENTENCE
---
Subject:Criminal law – sentencing – home invasion, theft, trafficking a drug of dependence and possess drug of dependence and related summary charges – combination sentence imposed.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P Pickering | John Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr P J Smallwood | Anthony Isaacs Criminal Lawyers |
HER HONOUR:
1 Daniel Jenkins, you have pleaded guilty before me to one charge of home invasion, one charge of theft, two charges of trafficking in a drug of dependence, and one charge of possession of a drug of dependence. In addition, you consented to summary charges being transferred pursuant to s145 of the Criminal Procedure Act 2009 and you pleaded guilty to Summary Charge 8, unlawful assault with a weapon, and Summary Charge 15, possession of a prohibited weapon.
2 Those charges are all serious and that is reflected in the maximum penalty prescribed by law and they are:
Home invasion – 25 years’ imprisonment;
Theft – 10 years’ imprisonment;
Trafficking in a drug of dependence – 15 years’ imprisonment;
Possession of a drug of dependence – 5 years’ imprisonment;
Unlawful assault with a weapon – 2 years’ imprisonment; and
Possess prohibited weapon – 2 years’ respectively
3 This offending occurred on 17 August 2017 when you were aged 22 and you are now aged 24.
4 I shall now proceed to sentence you on the basis of the Crown Opening that was read at the plea hearing.
5 The victim in this matter is Michael Lozanovski.
6 In the early hours of 17 August 2017, he was home alone, watching television. His mobile phone rang and, when he answered, there was no response. He then heard noises at his back door and, as he walked towards that door, he saw three men in his yard wearing bandanas and hats, walking towards the front of his dwelling.
7 He went to the front door and heard a loud bang on the door and words coming from behind the door, “You’re fucked now”. He held the door, which was unable to be opened because the latch was on, and then one of the men smashed the window near the front door. He then ran into the bathroom and locked the door behind him, fearing for his life.
8 You were one of three men. You then all came into the house together and started banging on the bathroom door. One of the men was armed with an axe and started to use the axe to bang at the door. There is no evidence that you were the one who wielded the axe. However, it forms part of the joint criminal enterprise.
9 As he was holding onto the door, Mr Lozanovski saw fuel coming underneath door. He then ran to the bathroom window and jumped out of the window, and then jumped the fence to go into a neighbour’s yard. As he did so he landed badly, as a consequence of which he fractured his heel. He then yelled for help and a neighbour called 000. He was taken to Box Hill Hospital later that day and diagnosed with a fractured foot. He was fitted with a CAM boot. (Charge 1, home invasion and Summary Charge 8, unlawful assault with a weapon)
10 Another neighbour, Richard Clifton, heard the noise and went out to investigate. He saw one male run past him down the road, and then another three men run to a waiting car. The men got in the ute and drove off.
11 A number of items were stolen from Mr Lozanovski house, including a PlayStation, two laptops and a television valued at $2,500. (Charge 2, theft)
12 Police processed the crime scene and various blood swabs were collected. Some years later, following your arrest for unrelated offences, your DNA was profiled. Subsequently it was matched to one of the swabs that was taken from Mr Lozanovski premises on 17 August 2017.
13 On 9 November 2018, police attended at your home and you were arrested. During the course of the search of the premises, a large ziplock bag of green vegetable matter was pulled down from a shelf in your bedroom. (Charge 3, trafficking in cannabis) You provided police with the code to a safe located in the bedroom and, on opening that safe, police found numerous ziplock bags containing white powder, (Charge 4, trafficking in cocaine), blister packs of Diazepam (Charge 5, possession of a drug of dependence), a vial of Enanthate and a sealed bottle of Kalma tablets. (Charge 5, possession of a drug of dependence) When questioned what the white substance was, you told police that it was “coke”.
14 Police located another ziplock bag of white powder and an open bottle of Kalma tablets in your bedroom (Charge 5, possession of a drug of dependence), together with an MTECH knife (Summary Charge 15, possess a prohibited weapon), a Telstra flip-phone and individual ziplock bags of green vegetable matter was also located. (Charge 3, trafficking cannabis)
15 Later analysis of your phone showed text messages relating to trafficking of drugs, that is further detailed at paragraph 12 of the Crown opening.
16 You were interviewed on 9 November 2018 and made no admissions in relation to the home invasion and largely gave a “no comment” answer to the allegations. When told that your blood was found at the scene of the home invasion, you stated “I find that surprising” and “I don’t understand how my blood could be there”.
17 Mr Lozanovski’s Victim Impact Statement spelt out in detail the effects of the offending upon him. In addition to the physical injury, namely the fracture of his left heel he suffered continual pain and difficulty standing for any periods of time, which makes it difficult for him to continue working as a car spray painter. He found difficulty in finding substitute employment. He also suffered emotional distress. He is now hyper vigilant and fears for his personal safety. He is very anxious whenever hears noise and does not feel safe at home. He is anxious and finds it difficult to sleep. He is also concerned about his wife’s safety.
18 Mr Jenkins, this is an example of this serious offence of home invasion involving as it does your entry upon the premises of Mr Lozanovski in company with others at which time they were armed with weapons and weapons were used to break into the home. You were all disguised. I have had regard to the gravity of the offending. This is a serious example of home invasion involving, as it does, forced entrance in company at night, with use of weapons to effect entry and damage done to various windows and the front door and bathroom door and the use of disguises to hide identity.
19 Such brazen and vicious offending requires stern punishment. This case calls for both specific and general deterrence to be emphasised, as well as denunciation and the protection of the community.
20 There are however a number of mitigating factors in your favour that I have taken into account.
21 Mr Smallwood on your behalf appropriately conceded that it was serious and utterly unacceptable behaviour. You acknowledg now that you must be punished and there is no excuse for your behaviour and you accept responsibility absolutely. You appreciate the effect of your conduct upon the victim and his family.
22 You are 1 of 3 children. You were born in Australia and lived here until age three, following which your family relocated to live in Sweden. You have an older sister and a younger sister. You had a good childhood in Sweden and remained there until your returning to Australia when you were aged seven. Your family settled in Doncaster and then relocated to Eltham when you were around the age of 13.
23 Your parents separated around that time and, following finalisation of Family Court proceedings, you returned to live in Sweden with your mother and younger sister. You were in your mid-teens and at the time you were very hurt and upset by your parents’ separation. You subsequently returned to live in Australia with your father and older sister, having difficulties to trying to adapt to life in Sweden.
24 Your younger sister continues to live in Sweden with your mother, whereas your older sister lives here in Australia.
25 Your father lives in Frankston South. It is intended that you will return to live with him on your eventual release.
26 You lived with your father for some four years following your return from Sweden, and then you moved out to live with friends.
27 Your close family was unaware of your drug use prior to your remand on these charges and your criminal activity has been a real shock to them. They are supportive of you. Many of your extended family members were present at the plea hearing.
28 Your mother and younger sister have visited you from Sweden since you have been in custody.
29 Your schooling was disrupted. You attended Montmorency Secondary College for Year 7 and then you returned to live in Sweden. You struggled in Sweden and had difficulty making friends. On your return from Sweden, you had to attend a new high school and found it difficult to settle in and there was incidents of bullying. You began smoking cannabis with friends at about that time. You left school at age 16.
30 In 2013 you completed a horticulture and landscape course. You then had surgery for a pigeon chest condition, following which you could not engage in physical activities for about three years.
31 On your recovery, you worked in various labouring roles, such as concreting, bricklaying and installation as well as some security work. You started a carpentry apprenticeship at age 20.
32 Upon your release from custody you hope to study graphic design, and you planned to work with your older sister who runs a successful marketing business.
33 Over your teenage years your drug use escalated and became problematic. A history of polysubstances abuse began as well as alcohol abuse and abuse of prescription drugs namely Valium and Xanax. The pattern of abuse became entrenched. You began using cocaine. You were drinking heavily around the time of your offending. There has never been any rehabilitation or treatment for substance abuse.
34 When you were aged 20 and living in a share house, you yourself were beaten in a home invasion, resulting in treatment at an emergency department for bruising, cuts and a broken wrist.
35 I have read the report of Ms Pamela Matthews, consultant psychologist, this report is dated 5 March 2019.
36 Ms Matthews considers that you meet the DSM-V criteria for adjustment disorder with mixed depression and anxiety. From a mental state perspective, you are increasingly likely to manage time in custody over time.
37 She considers that you present as a medium risk of re-offending, violent reoffending. Your prospects for rehabilitation are good. However, she recommends you would benefit from a basic violence intervention program.
38 She considers that given your youth you are vulnerable to institutionalisation and negative influences in an adult gaol setting. She recommends long-term involvement in drug rehabilitation.
Mitigating factors:
39 I have taken into account in your favour the fact that you entered into plea of guilty at the earlier stage at committal case conference on 15 February 2018. Your plea has real utility. You spared the victim the trauma of having to come to court to give evidence at your trial and the State the expense and inconvenience of a trial. You have facilitated justice and your sentence will be discounted accordingly.
40 I am satisfied that you are genuinely remorseful and that is reflected in the early plea and also in the acknowledgement set out in your letter of your apology where you openly accept that what you did was wrong and accept responsibility for your actions. You acknowledge the impact of your actions on the victim, the broader community, yourself and your family. You are embarrassed and sorry for your actions.
41 You do not have any prior criminal history. There are however some summary matters that remain outstanding. There is a matter listed in the Melbourne Magistrates Court on 26 June 2019 in respect to charges of criminal damage and trespass to which you will be pleading guilty.There are other charges pending where it is not yet determined what the course will be.
42 I have had regard to your relative youth and the need to emphasise rehabilitation in this sentence.
43 Mr Smallwood acknowledged on your behalf that some period of time in jail is warranted to reflect the seriousness of the offending and also the weight that must be given to denunciation and general deterrence in this sentence.
44 On 12 September 2018, I sentenced your co-accused, Tom Madden, in respect to one charge of home invasion, one charge of theft and a related summary charge (Charge 9) of unlawful assault with a weapon. Those charges reflect Charges 1 and 2 on this indictment, and Summary Charge 8 of your charges.
45 Mr Madden had a prior criminal history comprising of three court appearances. He had been before courts in relation criminal damage, possession of controlled weapon without excuse and deal with property suspected of being the proceeds of crime, for which he received without conviction adjourned undertaking on 24 February 2015 at Melbourne Magistrates’ Court.
46 On 15 December 2016 at the Melbourne Magistrates’ Court, he was sentenced in respect to a charge of robbery and placed on a one year Community Correction Order with conditions.
47 On 10 April 2017, he was convicted of recklessly causing injury, affray, common law unlawful assault and commit an indictable offence whilst on bail. He was convicted and placed on a Community Correction Order for one year with special conditions.
48 He contravened that order by virtue of the offending subject to his indictment and that was a further aggravating feature of his offending. He was aged 22 at the time of the offending and aged 23 at the time of the sentence.
49 I consider that your role in this offending is equal to his and that your moral culpability was high. The principle of parity does apply such that I must have regard to the sentence imposed on your co-offender. You have pleaded guilty to additional offences relating to the trafficking of drugs, namely cannabis and cocaine, and possession of Alprazolam and Diazepam.
50 However, there is reason to justify disparity given that you have no prior criminal history.
51 You have utilised your time in custody well. You are working in a kitchen. I consider having regard to that as well as your early plea of guilty, your apology, and post-offence conduct, I consider that you do have good prospects of rehabilitation. There is a real need for you to be supported in the community to address your underlying offending behaviours. That will be addressed through the appropriate programs that are provided for the Community Correction Order.
52 You have the support of an extended and large circle of family and friends who are aware of your situation and who have expressed their desire to support you. You have completed units at Kangan Institute in jail relating to Certificate 2 in Engineering and Certificate 2 in Cleaning and Kitchen Operations.
53 I have read all the relevant reference material from your father, Craig Jenkins, your mother, Brit Brostrom, your older sister, Cassandra Jenkins, your uncle, David Jenkins, your grandmother, Joyce Bombardieri, your auntie, Linda Meagher, your former girlfriend, Emma Bolton, and friend, Matthew Cox.
54 They have all indicated their ongoing support for you and also noted their observations that you have shown them that you have had a major shift in your attitude following your remand on these charges. You expressed positive views for the future and they are willing to continue to support you to move forward with your life.
55 Each of them expressed their real shock and disbelief that you engaged in such behaviour.
56 On your behalf, Mr Smallwood submitted that a combination sentence was open and that such a disposition could address all relevant sentencing principles. Mr Pickering on behalf of the prosecution conceded that such an option was available to the court.
57 I have already stated that you been assessed as being suitable for a Community Correction Order, with recommendations made in respect to treatment and assessment for drugs including testing, supervision and programs to address violent offending.
58 In sentencing you I must impose just punishment and have regard to the principles of totality.
59 I make the following formal orders. In respect to Charges 1 2, and Summary Charges 8 and 15, I will be imposing an aggregate term of imprisonment, what that means is 1 term of imprisonment because it relates to the same series of offences, and in respect to those charges you will be ordered to serve a term of imprisonment of 12 months.
60 Charges 3,4, and 5, I will be imposing an aggregate sentence, given that they relate to a series of charges relating to the trafficking of drugs and possession of drugs. In respect to Charges 3, 4, and 5 you will be convicted and ordered to serve a term of imprisonment of 9 months.
61 I make the order for cumulation as follows; 3 months for the aggregate sentence imposed with respect to Charges 3,4, and 5 will be served cumulatively upon the aggregate sentence imposed in respect to Charges 1,2 and summary Charges 8 and 15. The total effective sentence is 15 months imprisonment to be followed by a Community Correction Order of 2 years’ duration with supervision treatment and assessment and testing for drugs and program to reduce reoffending as I have earlier described.
62 I make a declaration pursuant to s6AAA of the Sentencing Act, but for your plea of guilty I would have imposed a term of imprisonment of four years to serve two and a half years.
63 I declare 228 days of presentence detention and direct that that be entered into the records of the court.
64 I make the disposal order sought.
- - -
0
0
0